December 3, 2015

“Why’s This So Good?” No. 99: Renata Adler and ‘Reckless Disregard’

Renata Adler’s "Reckless Disregard," an account of two momentous libel trials that took place simultaneously in the same lower Manhattan courtroom in 1985, is a sustained attack on both the law and on journalism

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Complex litigation of the kind typically handled by large corporate law firms contains no shortage of absurdities; indeed, absurdity can sometimes seem to be its basic condition, despite the sobering amounts of money at stake for the parties and the considerable intellectual capital expended. (Of course, it can also be deeply engrossing, or it would not hold the attention of so many intelligent people.) These absurdities are nearly endless in variety, but they have two basic sources: first, the disjunction between the Jesuitical refinements of legal process and the fundamental ends of justice to which the lay public believes the courts are directed; and second, the ego, vanity, and self-deception characteristic of any human enterprise, in contrast with the purported solemnity of the proceedings.

None of this is lost upon Renata Adler, whose “Reckless Disregard,” which began life in the New Yorker as “Two Trials,” is a sustained attack on both the law and journalism as institutions—indeed, almost on institutions qua institutions. An account of two momentous libel trials, Westmoreland v. CBS and Sharon v. Time, Inc., that took place simultaneously in the same lower Manhattan courthouse in 1985, “Reckless Disregard” is both an extension of the venerable tradition of the “trial book” and, like much else in her career, an almost uncategorizable product of Adler’s polymathic sensibility.

[Disclosure: More than a decade after the Sharon and Westmoreland trials, I worked as a staff attorney for the firm, now known as Cravath, Swaine & Moore LLP, that represented the media defendants. Adler was critical of Cravath in “Two Trials,” and after the cases were settled, the firm, on behalf of its clients, attempted to impede publication of “Reckless Disregard.” I express no opinion here as to the merits of this ancient dispute, nor as to the merits of the suits brought by Sharon and Westmoreland.]

In principle, the cases were straightforward enough. Time, in a dispatch by its Jerusalem correspondent, David Halevy, had strongly suggested that General Ariel Sharon was complicit in a bloody revenge attack by the Phalangists, a Christian Lebanese right-wing militia who were allies of the Israeli defense forces in the multi-party conflict then destroying Lebanon, upon Palestinian refugee camps in Beirut. And CBS, in a “60 Minutes” style “special report,” presented interviews in which various civilian and military officials accused General William Westmoreland, who had led U.S. forces in Vietnam, of manipulating reports of enemy troop strength in order to influence civilian policy makers in Washington. Both men expressed outrage at the allegations and, perhaps innocent of the realities of U.S. libel law, sued when Time and CBS declined to retract them.

In the course of the proceedings, Adler became convinced that both allegations were untrue, or at least unsubstantiated. But Adler is less concerned with the events that motivated the trials than with what the trial process itself reveals about the courts, the law firms, the military, and big media who collided there. And what troubles her is not that CBS and Time evidently got the story wrong, which is an unavoidable risk in reporting stories of this sort, but that they allowed their lawyers to run off with what ideally should have been a process of self-examination.

“Whether it was Cravath, or the press defendants, or some unexamined, combative folly the clients and their law firm embarked upon together, the refusal to acknowledge, or even to consider, the possibility of human error caused both CBS and Time and their attorneys to spare no expense, and experience, apparently, no doubt or scruple, in transforming both suits into a contest not of mistakes but of legal and journalistic shams,” Adler wrote.

… “[I]t is possible that when journalists and lawyers combine their particular certainties, totems and obfuscations, as well as their notions of what the truth, or even a fact, is and its uses, the result is almost inevitably farce … In the real world, the client’s journalistic interest in being accurate may be in absolute conflict with its legal interest in court in prevailing in the litigation.”

“Reckless Disregard” reports the events of the trial with care, from the deposition fights to the sidebar arguments to a bizarre but oddly touching scene toward the end in which Mike Wallace and Mrs. Westmoreland pledge to “get together and let our hair down,” but it is primarily meta-commentary, of a very high order. Adler is particularly good on the vexed relationship between legal process and truth:

“Whatever their other motives may have been (pride, anger, honor, politics at home), the plaintiffs were clearly suing on principle, and that principle, in each general’s mind, at least, was truth: not justice, but plain, factual truth … As it happens, American courts are not designed, or even, under the Constitution, permitted, abstractly to resolve issues of this sort, to decide for history what is true and false. They exist not as ministries of truth but resolve concretely whether this plaintiff has been injured by this defendant, and, if so, what amends the defendant should be required to make.”

As a trained lawyer (she took time away from her writing in the late 1970s to attend Yale Law School), Adler understands that the legal process is subject to quite profound epistemological limitations. A trial serves an important hygienic function in a liberal society—at its best, it can serve as a dramatization of state power exercised legitimately—but truth is not its quarry. Television dramas aside, a trial does not even purport to produce the truth; its highest aspiration is to produce a result—a result that is respected and that can be enforced by consent.

And in Adler’s telling, litigation observed up close is mostly ugly, the participants Daumier caricatures, wearing their vanity and self-importance like armor. Adler reviewed what must have amounted to tens of thousands of pages of transcript of the two proceedings, and she seems to find not a single example of honorable conduct recorded therein. Greed enters into the problem, but ego gratification plays by far the larger part:

“It is not altogether unusual (in fact, it seems to be one distinct style in the contemporary practice of law) to proceed as rudely and ferociously as possible. It may even be a standard technique for lawyers in that style to interrupt (particularly when opposing counsel is a young, relatively inexperienced attorney) by every possible means (including the use of speeches, hints to the witness and every variant of bellicose incivility, interspersed with utterly frivolous objections) the whole rhythm of a deposition—especially when there are certain substantial matters, embarrassing to the client and the client’s witness, that might, in an ordinary, courteous, orderly deposition, come to light.”

Adler is unimpressed with the lawyers, but her journalist colleagues come in for the harshest treatment:

“[T]he most remarkable witnesses, in both Sharon v. Time and Westmoreland v. CBS, were undoubtedly the members of the press. As early as the first depositions in Sharon, it was evident that witnesses with a claim to any sort of journalistic affiliation considered themselves a class apart, by turns lofty, combative, sullen, lame, condescending, speciously pedantic, but, above all, socially, and, as it were, Constitutionally arrogant, in a surprisingly unintelligent and uneducated way. Who are these people? is a question that would occur constantly to anyone upon reading or hearing the style and substance of their testimony. And why do they consider themselves entirely above the rules? … What was true and false also seemed, at times, to be a matter of almost complete indifference to them. Above all, the journalists, as witnesses, looked like people whose mind it had never crossed to be ashamed.”

If there is a villain among villains in “Reckless Disregard,” it is David Halevy, the Time Jerusalem correspondent who reported, if that is the right word, the story of Sharon’s purported role in the Sabra and Shatila massacre. Halevy, in Adler’s estimation, is a man for whom the concept of truth has no fixed meaning, and indeed, no special prerogative:

“These were the earmarks of Halevy’s testimony on the stand and at his deposition: a virtual incapacity to give a straight answer to a simple factual question, coupled with an almost complete indifference to what is conventionally understood by “facts” and to consistency between his own factual accounts or versions from one moment to the next; remarkably frequent use of the words “clear” or “very clear,” almost invariably in the course of unintelligible, unresponsive or plain absolutely implausible answers … and a kind of bizarre, self-confident, but utterly misguided pedantry …”

Adler’s relationship to mainstream journalism has always been fraught, to put it mildly. She has been a dedicated burner of bridges. At the same time, she has flattered journalism by her sustained interest in its lore, its processes, and its shibboleths. She is not a cynic about journalism—an attitude currently fashionable, with dolorous consequences for public discourse—but a disappointed idealist. It is true that her criticisms seem a bit like piling on just now, when print journalism in its pro publica aspect is so embattled. But the press is always more resilient than it seems, if only because it is so essential. It can countenance even the bitterest criticism when it is made in good faith.

Adler was never a full-time trial reporter, but she returned to the law repeatedly in her career, most memorably in “Two Trials,” but also in “Searching for the Real Nixon Scandal,” her account of the Nixon impeachment hearings, and in “Decoding the Starr Report,” her much-quoted attack on the Whitewater special prosecutor. “Two Trials” appeared at a time of increasing journalistic interest in the legal process, driven by two independent forces: first, the Watergate hearings, which focused the attention of ordinary Americans for an extended period on somewhat arcane issues of executive privilege, the separation of powers, and the Fourth and Fifth Amendment rights of criminal defendants; and second, a sharp increase in lawyer salaries in the 1980s, which gave a veneer of glamour (think “L.A. Law”) to what had formerly been regarded as a somewhat fusty profession.

These forces also gave rise to Steven Brill’s The American Lawyer, a magazine that was simultaneously an industry rag—Variety for lawyers—and a producer of investigative reporting and thoughtful analysis that shined light into darkened corners of the court system. There had been distinguished legal reporting before The American Lawyer, by Anthony Lewis and others, but Brill gave it a home of its own. Much of the best reporting since has been done by journalists like Adler (and Jeffrey Toobin, James Stewart, Linda Greenhouse, and others) who have degrees in law and who are more sophisticated about legal process and less likely to be dazzled by its mystifications than prior generations of courthouse reporters.

Adler is somewhat outside that tradition, in that, like another New Yorker writer, Janet Malcolm, her purpose is less documentary than philosophical. Crucially, Adler decided not to conduct any interviews while the trial was in process, though she does seem to have consulted a young associate on the Westmoreland team post-trial, and as mentioned above, she shared a pre-publication draft of “Reckless Disregard” with Cravath, though for purposes of inoculating herself against suit than as a matter of journalistic hygiene. To have interviewed the participants would have risked being imprisoned in their narratives of the trials, and in these cases, as is often true in litigation, the goals of the litigants were somewhat in conflict with what was important about the case in its public dimension. Indeed, this tension, the degree to which the defendants’ rhetorical invocation of press freedom was at odds with the way the cases were actually defended, is one the themes of “Reckless Disregard.”

“Reckless Disregard” is deeply indebted to Hannah Arendt’s “Eichmann in Jerusalem,” the trial book by which all others are measured. Adler has frequently noted her admiration for Arendt, and the correspondences between “Reckless Disregard” and “Eichmann in Jerusalem” could form a separate study. Just as “Eichmann in Jerusalem” asserted a counternarrative, embodied in Arendt’s famous coinage about “the banality of evil,” to the prevailing view of the Nazis as cultured, coldly intelligent ubermenschen, the ur-theme of “Reckless Disregard” is that the cases of Sharon v. Time and Westmoreland v. CBS were something other than what they seemed:

“If there was a moral to be drawn from both cases … it seemed rather this: that received ideas, as so often upon examination in detail, happened to be wrong. The received, the right-minded, the liberal position in both cases was that the press defendants were protecting some valued and fragile Constitutional right against the assaults of whatever ideology was personified by two former military men. The reality had to do, rather, with the fragility, under the combined assault of modern newsgathering and contemporary litigation, of the shared sense of historical fact.”

Like Arendt, Adler is a writer who has often been almost willfully misread. Discussion of Adler focuses on what is most controversial or quotable, but as with Arendt, the dialectical process, the intimate experience of a nimble and rigorous mind observed, is what compels attention. Adler, like Arendt, is a revelation even when one is not entirely certain that she is right.